A California bill recently signed into law by Gov. Jerry Brown, AB 460, clarifies language and clears up confusion around whether gay and lesbian intended parents are entitled to insurance coverage for infertility treatment: They are.

California previously required that insurers offered registered domestic partners the same infertility treatment coverage as heterosexuals, but some insurers continued to discriminate against same-sex couples based on a legal definition of infertility that created confusion and thus a loophole. California law previously defined infertility as either:

(1) the presence of a demonstrated condition recognized by a licensed physician as a cause of infertility, or (2) the inability to conceive a pregnancy or to carry a pregnancy to live birth after a year or more of regular sexual relations without contraception.

Obviously, for gay or lesbian couples, that definition doesn’t work.

As reported in the ASRM (American Society for Reproductive Medicine) Bulletin:

Language in the bill [AB 460] clarified that nothing in this bill should interfere with the clinical judgment of a physician and surgeon, and that insurers and HMOs are prohibited from making coverage decisions on a discriminatory basis.

Existing law required California insurers that offered group coverage and health plans covering at least 20 employees to offer coverage for infertility treatment, excluding in vitro fertilization (Note: both the old and new law do not require insurers to cover infertility treatments as part of basic insurance; rather, the law only requires insurers to offer such coverage (and, of course, the insurers can charge a premium for the additional coverage). But some insurers used the definition of infertility to avoid even offering coverage to gay and lesbian couples. In one case cited by the National Center for Lesbian Rights, in support of AB 460:

A woman from Alameda County who was denied coverage by her health insurance provider for infertility treatment, despite having been previously diagnosed with an organic infertility condition (fibroids), because she did not meet her plan's definition of "infertility," which required her to have had intercourse with a man for a period of time without conceiving.

In its support of the bill, ASRM reported that although coverage policies differed from insurer to insurer, a rule of thumb was that infertility for heterosexual couples was defined as the inability to conceive after having had frequent, unprotected sex for one year, or for six months if the woman was over 35. A single woman, on the other hand, was generally deemed infertile if she failed to conceive after six to 12 cycles of artificial insemination.

ASRM states that these descriptions are inherently discriminatory, as a woman must pay for artificial insemination prior to being able to meet the definition of infertility, and that these definitions apply to a single woman, but not to a single man.

The bill generated a good deal of interesting and often contentious debate on what the limits should be in covering conditions of infertility and attendant economic issues, a topic addressed by fertility educator and writer Lisa Rosenthal in her blog, Path To Fertility. Should insurers also be required to offer infertility treatment coverage to women who are unable to conceive because they have entered peri-menopause? What about a transgender male-to-female who wishes to conceive? The knee-jerk reaction might be to say, “No, not if it raises my insurance premium.” But then what about individuals who contract cancer or another catastrophic illness, whose treatment also may impact insurance premiums? Who has the right to determine who does and does not have the right to try to procreate?

All are heavy questions that will no doubt be debated extensively as our population ages, technology advances, and health care costs continue to rise. For today, we celebrate the step California has taken toward the equal rights of LGBT couples to create families in the way that is best for them.

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Richard Vaughn

rich@iflg.net

Attorney Rich Vaughn is founder and principal of International Fertility Law Group, one of the world’s largest and best-known law firms focused exclusively on assisted reproductive technology, or ART, including in vitro fertilization (IVF), surrogacy, sperm donation or egg donation. Rich is co-author of the book “Developing A Successful Assisted Reproduction Technology Law Practice,” American Bar Association Publishing, 2017.

ABOUT IFLG

As a law firm practicing exclusively in fertility law, we are committed to providing you and your family with the highest caliber legal support in all aspects of assisted reproductive technology law, including surrogacy, egg donation, embryo donation, sperm donation, parental rights, non-traditional family formation and second-parent adoption.

Peiya Wang joined IFLG as a paralegal in 2015, where she manages surrogacy, egg donation and parental establishment cases and provides translation services for many of IFLG’s international clients. Peiya received her bachelor’s degree from Beijing Technologies and Business University, where she majored in Marketing. She moved to the United States in 2012 to attend Northeast University in Boston, Massachusetts, receiving a Master of Science degree in Global Studies and International Affairs in 2014. Peiya moved to Los Angeles in 2015 and received her paralegal certification from UCLA Extension. When away from the office, Peiya is a dragon boat paddler and a ballroom dancer, where she favors Rumbas and Cha-chas. She is fluent in Mandarin and English.

Luis R. Sosa joined IFLG as a paralegal in 2016, where he enjoys pursuing his passion for family and reproductive law. While working toward his bachelor’s degree at Florida International University, Luis worked as a paralegal and legal assistant for family law litigation firms in Miami and Washington, D.C. As a paralegal and case manager for IFLG, Luis, who is bilingual in English and Spanish, manages surrogacy, egg donation and other reproductive law cases. In addition to spending time with husband Randy and dog Marty, Luis enjoys being outdoors and appreciating the arts.

After receiving her B.S. in Business Management, Toni joined IFLG to pursue her dream of working in the legal field. As a Paralegal with over 10 years of experience in the assisted reproduction technology field, Toni is our Managing Paralegal, responsible for training and managing our paralegal staff. From drafting legal documents to assisting our clients with post-birth matters, Toni embraces the challenge of learning something new in this field each day. Besides spending time with her son, Jordan, Toni enjoys exploring new things, cooking, spending time with family and friends, and serving as a Youth Advisor for “Next Generation.”

Miesha Cowart joined IFLG as a financial specialist in 2014 following a successful career in development and business finance. Miesha previously worked for 10 years in the construction industry as a controller and for 13 years as Development Coordinator for the non-profit U.S. Fund for UNICEF. In her free time, Miesha works with “Next Generation” at her church. “They are my heartbeats!” she says of the youth in her community.

Kim has over 25 years of experience in the legal field and has worked exclusively in surrogacy and assisted reproduction law since 1999. Kim is a senior case manager of surrogacy and egg donation cases, and is also responsible for managing parental establishment cases and interacting with IFLG’s Of Counsel attorneys across the country. With three children of her own, Kim understands the importance of family and finds working in this area of law a rewarding experience.

Attorney Rich Vaughn combined his personal passion as a father of twin boys born via assisted reproductive technology (ART) with more than 20 years of experience in business and technology law to build International Fertility Law Group. Today IFLG is one of the most successful and best-known law firms in the world focused exclusively on fertility law, helping thousands of intended parents through empathetic listening, compassionate guidance, and unmatched legal expertise. As an advocate for reproductive freedom, Rich also contributes his knowledge and time to improving the understanding and practice of ART law, most recently as a founder of and speaker at the first Cambridge University International Surrogacy Symposium held in June 2019, as immediate past chair of the American Bar Association ART Committee, and as a popular presenter to law schools, faculty and advocacy organizations all over the world.

Elizabeth received her Bachelors of Science degree in Criminal Justice from California State University of Los Angeles. Shortly after graduating, she continued her education at the University of California, Los Angeles where she obtained her Paralegal certificate. Elizabeth is fluent in Spanish and has been in the legal field since 2009. She is excited to be a part of the IFLG Team helping families realize their dreams.

Sunny joined IFLG as a paralegal in 2017, where she manages surrogacy, egg donation and parental establishment cases for many of IFLG’s international clients. She holds a Bachelor of Arts degree in Philosophy from California State University of Los Angeles, where she graduated cum laude. Sunny is bilingual in English and Mandarin and has extensive experience as a legal assistant and paralegal at Los Angeles-area law firms. She is excited to be part of the IFLG team. In her spare time, Sunny enjoys spending time with her family and their dog, going to the beach, cooking, and being outdoors.